Mark Meadows Didn’t Help Anyone Yesterday

"It’s the first time Mark Meadows has spoken in public in more than a year—and it’s as a criminal defendant on a witness stand."

My play-by-play of Meadows's testimony in federal court is out now @lawfare:https://t.co/C4bmWeMnJ8

— Anna Bower (@AnnaBower) August 30, 2023

The question of the role of the federal government generally, and of agencies of that government specifically, will continue to obsess us:

Cross zeroes in on the latter “federal policy,” asking Meadows to explain the role of the president in state elections. Meadows replies that there is some role for the federal government in that area. He notes that the Justice Department has a role in investigating fraud allegations and another federal agency, the Department of Homeland Security, deals with cyber threats to voting systems. 

At one point, as Meadows reiterates his view that there is an “interconnection” between state elections and federal policy, Judge Jones interrupts: “Let me ask this,” he says. Is there a role for the president in state elections under Article II of the Constitution? 

“I don’t know enough to opine on that,” Meadows replies sheepishly. “That’s fair,” Jones replies. 

Cross, for her part, doubles down on quizzing Meadows about the federal policy at stake. She narrows the scope of her prior question: “Do you know of any federal role in the certification of state elections?” she asks. “I do not,” Meadows concedes.

And what it means to be “acting under color of office”:

Next, Cross grills Meadows on the message he allegedly sent to either Watson or Fuchs, in which he queried whether financial assistance from the Trump campaign could “speed up” the Fulton County signature verification audit. In reply, Meadows claims that he wasn’t making a “financial offer” on behalf of the campaign. Prior to sending that message, he explains, the state of Wisconsin held a recount, which the state agreed to do so long as it was paid for by the Trump campaign. In Fulton County, Meadows says, “we” wanted an answer “quickly.” And considering the circumstances surrounding the recount in Wisconsin, he asked Fuchs about campaign assistance in order to advise the president on whether the audit would place a “financial burden” on a state entity. 

Cross follows up: But you had no ability to offer federal funds, right? “No,” Meadows admits.

I would note that goes not just to the removal question, but to his immunity defense.

Meadows testifies that he believed the purpose of the call was to reach some sort of “compromise” between Trump attorneys and the secretary of state’s office with respect to pending litigation in Georgia. The purpose, he insists, was to find a “less litigious” way to get a signature verification audit in Fulton County. “The president said he wanted that,” Meadows claims. And that was a goal of the campaign? Cross asks. “I don’t know. … I don’t speak for the campaign,” Meadows replies.

If it wasn’t a goal of the campaign, it was illegitimate for POTUS to be inquiring. If Meadows was acting on behalf of a litigant to affect litigation, he was approaching a party to the case on behalf of that litigant, which is an improper (at least) action. If he was trying to get the SOS of Georgia to settle the suit, again: improper and end run on the lawyers (the Georgia AG): same analysis, IOW. And Trump had to be bringing suit as a candidate, not as POTUS; so Meadows grossly overreached his authority,  or he acted for the campaign (the true litigant). He can say he didn’t mean to, but that doesn’t change the facts.

Cross next shifts to Meadows’s role in the “fake electors” plot. When asked if he had “any role” in coordinating the fake electors, Meadows replies “No, I did not.” 

The prosecution then submits its first exhibit. It’s an email exchange between Meadows and a Trump campaign adviser, Jason Miller. In the email, Meadows appears to attach a copy of the “Chesebro memo” that set out a strategy for coordinating “alternate” electors across several contested states. “Let’s discuss,” Meadows tells Miller. In a later email, Meadows writes, “If you are on it then never mind the meeting. We just need to have someone coordinating the electors for States."

Oops. And funny no one is yet talking about this bit of news:

After a short break, the prosecution calls its first witness: Kurt Hilbert, the attorney who worked on the Trump campaign’s litigation in Georgia and who was on the Jan. 2, 2021, phone call. Hilbert, a burly man sporting a charcoal suit, takes his seat at the witness stand. Hilbert testifies that, in the lead-up to the Jan. 2 call, he was at his office preparing for an upcoming hearing related to one of the Trump campaign’s pending lawsuits in federal court in Georgia. Hilbert says that Alex Kaufman came into his office and said, “There’s going to be a call.” He says his understanding was that the call was going to involve the president. And he reveals for the first time that a separate call took place prior to the Raffensperger call. That call, he says, included Trump, Meadows, Mitchell, and Hilbert’s legal team. 

Hilbert refuses to testify more about this, however. When Cross presses him to reveal more about the substance of either call, he claims that doing so would violate Rule 408 of the Federal Rules of Evidence, which bars the admission of statements related to certain compromise offers or negotiations. 

On cross-examination, Hilbert similarly refuses to discuss the substance of the call, though he tells Meadows’s attorney that he believed Meadows participated in the call in his capacity as chief of staff. 

It is unclear what the point of Hilbert’s testimony is—except maybe that Hilbert was a lawyer working for the Trump campaign, not the White House or any federal agency, and the White House chief of staff was engaging directly in the campaign’s litigation.

I think that was the point exactly. And there was this point, too:

Ratffensperger, the mild-mannered engineer turned Georgia secretary of state, strolls into the room through the doors to my left. After being sworn in just after 3:30 p.m., Raffensperger begins by explaining that he is the chief elections officer in the state of Georgia. Describing how elections operate in the state, Raffensperger says that neither the federal government nor the president plays any role in certifying the state’s elections.

The judge got that point:

Under questioning by Cross, Raffensperger turns to the circumstances behind the Jan. 2, 2021, phone call. He says that his deputy secretary of state, Fuchs, reached out and said that the White House called and wanted to speak with him. “It was Mr. Meadows who reached out to her,” Raffensperger testifies. 

While Raffensperger says he was initially reluctant to take the call, he ultimately agreed to speak to Trump at Fuchs’s suggestion. According to Raffensperger, his understanding was that Trump wanted to speak with him about election-related matters. 

“Those were Trump campaign lawyers. I thought it was a campaign call,” Raffensperger says. 

Judge Jones interjects to ask if Governor Brian Kemp had already certified the election at this point. “Yes, your honor,” Raffensperger replies. So, Jones wonders aloud, was there “anything to settle” at this point in time? “I don’t think so, your honor,” Raffensperger replies.

And again, the propriety of these actions:

As Raffensperger testifies, Cross plays several excerpts from the call. In one excerpt, Meadows raises the prospect of getting “access to the secretary of state’s data” to either validate or invalidate claims of election fraud. 

Who wanted that data? Cross asks. “The Trump campaign,” Raffensperger replies. 

As Cross wraps up Raffensperger’s direct examination, John Moran strides to the lectern to conduct cross-examination on behalf of Meadows. At Moran’s prompting, Raffensperger agrees that there can be a “law enforcement function” in investigating voter fraud allegations. And, when asked if there was anything inappropriate about Meadows’s statements on the call, Raffensperger replies, “I didn’t take it as inappropriate.” 

On redirect, Cross asks Raffensperger a single question: When the federal government investigates voter fraud allegations, do they ask you to hand over data to the campaign? No, Raffensperger says. They ask you to send data to the FBI agents on the case.

I can’t say how this determines the removal issue, although I’m sympathetic to the state’s argument that there is a bar to clear, however low, and Meadows didn’t clear it. I also don’t think Meadows’ analogy if “landing the plane “ (i.e., trying to get to transition) is “King’s ‘X’” he wants it to be. His actions mark him as both a COS and a campaign official. He’s preaching it round and square, but he only gets the benefit of one position.) Regardless, the state’s case for prosecution is looking pretty good at this point.